FSNE - Sunshine Sunday

They asked for phone numbers, addresses, driver’s licenses and signatures. They said to come back with lawyers, with subpoenas, with better answers and at better times.

They interrogated. They balked. They scoffed.

About 75 percent of the time, they did not follow the law. Government, school district and law enforcement offices in seven Panhandle counties routinely violated Florida’s Sunshine Law during a two-week audit conducted last month by The News Herald.

Of the 47 agencies tested by reporters, 22 failed to produce documents and 13 others skirted the law by requiring names, reasons or written requests in exchange for public records.

Reporters, who did not identify themselves as such, visited county offices, school districts, sheriff’s offices, city halls and police departments in Bay, Calhoun, Franklin, Gulf, Holmes, Jackson and Washington counties. At law enforcement agencies, reporters asked for a single day’s worth of incident reports. At government and school district offices, reporters requested to view specific personnel files.

The compliance rate — just 28 percent — is troubling to the experts and analysts who helped organize Sunshine Sunday, today’s statewide newspaper effort to raise awareness for open government in Florida. The campaign aims to shed light, so to speak, on a law designed to give citizens the power to keep tabs on their government.

“Those numbers are always disappointing to hear,” said Sandra Chance, executive director of the University of Florida’s Brechner Center. “But, unfortunately, it’s not a surprise.”

A proud history

Since 1909, Florida has been among the nation’s trailblazers in shaping, expanding and guaranteeing the public’s access to government. The state further secured that right in 1992, when voters overwhelmingly supported a constitutional amendment that empowered their ability to oversee government activities.

Chapters 119 and 286 of the Florida Statutes — commonly referred to as the Sunshine Laws — ensure that citizens can freely inspect any document generated by the government unless it is specifically ex-empted by law. The law also requires that any government-related meeting between two or more officials is conducted in public.

Exceptions to public records are numerous, with legislators adding between 10 and 20 new exemptions each year. There currently are about 800 exemptions in the law; the most commonly cited are investigative materials, security measures and personal details such as Social Security numbers and medical information.

Last year alone, legislators passed 13 new exemptions to the law. Reps. Allen Bense, R-Panama City, Donald Brown, R-DeFuniak Springs, and Bev Kilmer, a former legislator, each voted in favor of the new exemptions. So did Sens. Al Lawson, D-Tallahassee, and Charlie Clary, R-Destin.

Audits in Florida and other states have produced results similar to those in the Panhandle. Last year, 30 Florida newspapers found that only 57 percent of the state’s agencies complied with requests. In Ohio, a newspaper association’s test was so profoundly disappointing that the attorney general declared a public records state of emergency.

“Florida and Ohio have long been considered the gold standard of open government,” said John Bussian, the media attorney for The News Herald’s parent company, Freedom Communications Inc.

Bussian represented The News Herald and gained a precedent-setting ruling last year that search warrant affidavits should be open for inspection. The newspaper was challenging a ruling that banned it from obtaining search warrant affidavits in the Girls Gone Wild case.

“But it’s been my experience,” Bussian said, “that the mindset among government in many places is that the public’s right to know ought to be restricted. Many public officials are not proponents of open government.”

Suspicion and failure

The News Herald set out to gauge how easy, or difficult, it is for the average person to obtain common public records. Reporters did not identify themselves or carry media ID, and made specific requests for documents that generally are known to be public.

The reactions to their requests were mixed.

In Port St. Joe, Sgt. Russell Burch was friendly, but suspicious.

Smiling but full of questions, he came to the front window and shook a visitor’s hand. Burch led the man through a cramped hallway and to a desk in the back of the Port St. Joe Police Department.

The request was simple — incident reports from Feb. 7 — but the officer’s questions were many. Burch asked for a name, for specifics, for a motive.

“Why do you want to look at our reports?” he asked. “… Son, do you think your girlfriend filed a police report on you?”

Burch’s line of questioning proved familiar at 20 law enforcement offices, where the newspaper uncovered one of the worst compliance rates of the survey. Seventy-five percent of the police departments and sheriff’s offices refused to release the documents or made unlawful demands, and similar themes arose from requests made at government agencies and school districts.

The results:

• Twelve law enforcement agencies did not release requested records. In Apalachicola, Chief Anderson Williams said the department does not have the computer capability to generate the reports. Similar answers were given in Lynn Haven and Gulf County. Department brass at a handful of agencies also made claims that are in contrast with a recent opinion by the state attorney general. At least four departments said incident reports that remain under investigation could not be released until the case results in an arrest.

• School district officials were repeat violators, as six of seven offices were in noncompliance. In most cases, administrators said it was district policy to require identification or a written form in exchange for personnel files. District employees also were the most suspicious, often citing child safety and terrorism concerns as reason to keep files shut.

“I’ve got to know the reason why before I can give it to you,” said Sara Joe Wooten in Gulf County. “We can’t have every John Doe walk in here and look at a personnel file.”

• County and municipal government offices also routinely failed, as many officials asked for names or required the request be made in writing. Of 20 agencies audited, only six complied. Often, administrative assistants and secretaries referred the request to supervisors, who continued to pepper reporters with ques-tions and suspicion.

• Thirteen agencies complied fully. They were: the Bay and Calhoun sheriff’s offices; Bonifay, Parker and Chipley police departments; Franklin County School District; Holmes and Jackson county offices; and city halls in Port St. Joe, Marianna, Mexico Beach, Panama City and Parker. Most of these agencies went beyond the original request, offering supplemental documents and advice. At the Calhoun Sheriff’s Office, secretary Robin Clemmons asked a reporter to join her at a computer and explained how the department logs its reports daily.

‘Culture of secrecy’

Open government advocates urged The News Herald to take a hard line in its analysis, as public records gurus offered a single grading scale: Pass or Fail. The law, said Chance of the Brechner Center, is clear in that custodians cannot create a “chilling effect” on the public’s access. What is not clear, however, is the definition of a “chilling effect.”

“The problem comes in the law because it doesn’t say custodians can’t ask for a name,” Chance said. At the Brechner Center — and similar watchdog groups — advocates help journalists, attorneys and citizens with issues related to media law and open government.

“You can argue that even by asking for a name, that creates a chilling effect,” she said. “Too often it’s their goal to make it more difficult for reporters. They’re not looking for information because they want to write a feel-good story. So government agencies walk a fine line. They don’t want to violate the law, but they can make it harder to gain access to records.”

In constructing new obstacles, experts said agencies often insert policies that run afoul of the law. But it is the custodian’s responsibility to know and enforce the law, advocates said, and audits prove to be the first step in an overdue education.

Charles Davis, executive director of the Freedom of Information Center of the University of Missouri School of Journalism, said public officials often are paralyzed by a “culture of secrecy” and prefer to re-lease information on their terms. While journalists are accustomed to fighting for information, citizens are not.

“(Audits) have been incredibly effective in large part because they nail down what we all know anecdotally,” Davis said. “Be they reporters or citizens, almost immediately, these war stories start popping up.”

In many cases during The News Herald’s audit, the custodians — including police officials who wrongly claimed that some incident reports are not public record — did not know the law. Nor did their supervisors.

Because the law allows for a “reasonable” amount of time to produce requested documents, reporters were instructed to speak with supervisors and arrive at agencies early in the day. But in some instances, bureaucratic red tape, false promises and interrogations prevailed.

In Blountstown, the police chief questioned a reporter’s motives, inspected his driver’s license and eventually called the reporter’s editor. Chief G.H. Kimbrel told the editor that he wasn’t denying access to the records, but that “we got a right to know why you want to look at our activities.”

When the editor explained that incident reports were subject to the Public Records Law, Kimbrel dead-panned: “I know the law. I’ve got a whole book on it.”

If it is this difficult for a reporter to access records, Davis said, consider a citizen’s dilemma. Too often, a citizen’s skepticism of government is confirmed when denied access.

“A reporter is somebody who’s paid to be dogged, persistent, sort of fearless in the face of official intimidation,” Davis said. “But these laws are for the public, not the press. How many people are going to just shrug their shoulders and walk away? Many of them, because they have lives and families and jobs to get back to.”

When intimidation was absent, officials tried to make the process arduous. At the Bay District Schools offices, administrators repeatedly told a reporter to return later, when a supervisor was available. The re-cords, they said, would be turned over in several days. In Lynn Haven, a personnel supervisor launched into questions about the reporter’s name and intentions.

While Charlene Messer with the city of Lynn Haven said the records were public and could be inspected, she also said it was her right to question anyone who made the request. “It’s my job to protect my employees,” Messer said. “I don’t just sling records to anybody who comes in and asks.”

A public education

Gulf County Schools Superintendent Tim Wilder was confused — not by the audit, but by the district’s policy. Washington County Sheriff Bobby Haddock was mad — not at The News Herald, but his own employees. Bay County Sheriff Frank McKeithen was relieved — his department passed with flying colors.

Lynn Haven City Manager John Lynch was disappointed — not at his employee, but at The News Herald.

Lynch called the newspaper minutes after the person made a request and left city hall empty-handed. He said city employees recognized the person as a reporter shortly after he left. Lynch said that day’s exchange does not accurately reflect the city’s willingness to open records, and that Messer was waylaid by the re-porter’s demeanor.

Lynch also wanted to know why a reporter wanted to look at his personnel file.

“When people come in,” he said, “if they have an issue, they usually say, ‘I’m so and so’ and they give us their name. The request is usually on some issue, and they say they’d like to look at a copy of a resume, or a copy of this and that. And we’ll say fine. I’m not going to belittle how you did (the audit), but your demeanor was a little different and that makes people suspicious.”

Said Chance: “Of course it does. Any time someone wants to look into the government’s business, they’re labeled as suspicious. And it’s been compounded by (the 9-11 attacks). They’ve sort of retreated into the idea of, ‘We just don’t know who could be the next terrorist.’”

At the Washington County Sheriff’s Office, suspicion wasn’t the issue. Haddock, elected in November, explained that he was upset with the employee who asked for a subpoena and said the audit would expedite an upcoming Sunshine Law training session.

“If that’s the case,” Haddock said, “then we need to do some education of public records law.”

Wilder, just four months into the job, acknowledged that he largely was unfamiliar with the Sunshine Law and did not know whether a longstanding policy of sign-in sheets and identifications was within bounds. Wilder said he would consult with district attorneys to see if that policy needs to be amended.

“Most of these policies are just continuing to do what’s always been done around here,” he said. “In this administration, we do things fairly and accurately and, of course, by the law. Hopefully we’ll be able to learn through situations like this project.”

For McKeithen, there was a sense of relief but not surprise.

A spokeswoman joked that the Sheriff’s Office “must have had a good day” but also said that the department’s policy is quite clear: The only time a name is asked is in the lobby, for security reasons. At no time, spokeswoman Ruth Sasser said, are department employees to pester or question those seeking public documents.

“Basically,” Sasser said, “(McKeithen) believes that the Sunshine Laws are complicated. It would be his opinion that if anybody made a mistake, it was an honest mistake. They weren’t doing it intentionally, to hide anything. It’s very complicated knowing all these public record laws.”

Reproduced courtesy of the Panama City News Herald.